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Tuesday, November 1, 2011

I missed my self-imposed deadline to complete my book about Rick Perry's caviler approach to executions occurring under his watch. I had hoped to be done by the end of October. It is now the first of November. I didn't make it. I'm tempted to say I'll complete the book in days, not weeks. In today's parlance, however, that means I won't be done for months. I'll pass on predicting how much longer it will take me.

I have, however, settled on a title and sub-title for the book. While I found no title I liked better than the Skeptical Spouse's America's Executioner, I did benefit from what you readers proposed as titles and sub-titles in response to my request for help. Almost every sub-title I have since entertained began with "Rick Perry's [something or other]." I derived that concept from your suggestions. I liked as well Greasing the Machinery of Death, also from the readers. You will see that I used a variation of that theme as a sub-chapter heading in the introductory chapter.

Thank you for your thoughts and insights. The Skeptical Spouse and I spent a fair amount of time discussing the subtleties of all the suggestions. In appreciation of your efforts, I post the introductory chapter immediately below.

America's Executioner

Rick Perry's Betrayal of Executive Clemency

INTRODUCTION

A Well-Oiled Death Machine
When it comes to executing its citizenry, no state does it more frequently or with more gusto than does Texas. Under the gubernatorial stewardship of George Bush and Rick Perry, Texas has executed one person every other week for the last 17 years. Most of those executed were actually guilty of the crime for which they died.

Since 1976, Texas has executed 476 people. No other state comes within an arm's length. Virginia is second in the grisly accounting, having executed 109 people during the same period. Virginia's execution count is less than one quarter that of Texas. In fact, Virginia's count can't quite measure up to just one particular county in Texas. Harris County, home to Houston, has by itself sent 115 people to the death chamber.

Oklahoma comes in third in the body count with 96. That's but a fifth that of Texas.

Since the Supreme Court declared in 1976 that executions were once again constitutional, more than half the executions have taken place in Texas, Virginia, or Oklahoma. Texas, by its lonesome, has been home to 37% of all 1,272 executions carried out in the United States since 1976. Texas hopes to add two more by the end of the year. At least one of those is actually guilty.

In terms of executions per capita, Texas is second only to Oklahoma. Oklahoma has executed 26 people for each one million of its population; Texas has executed 19 people per million. The national average among the other states in which the death sentence is still legal is 4 executions per million residents.

Governor Rick Perry has hardly shied away from Texas' well-deserved reputation as the most death-penalty friendly state in the union. In his book Fed Up!, Perry writes:

If you don’t support the death penalty and citizens packing a pistol, don’t come to Texas.

Cause for Concern
There may be a problem with Texas' well-oiled execution machine. While Texas may be uniquely effective in executing its residents, the state's machinery displays symptoms of being imperfect about targeting only the guilty. One possible symptom is the state's success in carrying out the death sentences it imposes. Nationwide, excluding Texas, only 10% of the death sentences imposed since 1976 have actually been carried out. Texas, by comparison, has somehow managed to execute 50% of those it has sentenced to death. That's five times higher than the national average.

One possibility is that the Texas system of justice is five times more accurate and error-free than that throughout the rest of the country. Perhaps Texas prosecutors, juries, and judges are only one fifth as likely to make an error that would overturn or delay a death penalty conviction. If so, they have yet to detail and share their secrets of administering comparatively swift, comparatively error-free capital justice.

Another possible symptom of wrongful executions in Texas is the state's rather miserly rate of exoneration among those sentenced to death. As used here, an exoneration is a case in which the condemned person was acquitted at a retrial, had all charges dropped, or was given an absolute pardon by the governor. Exonerations do not include commutation of sentence or a re-trial in which the person was found guilty of a lesser count. In other words, an exoneration is an admission by the courts, the prosecutors, a jury, and/or the governor that the person condemned to die is likely innocent.

Nationwide, excluding Texas, there have been 126 exonerations such as just defined. Texas, by disturbing comparison, has exonerated only 12 of those it sent to death row.

Assuming Texas convicts innocents at the same rate as the other states, assuming therefore that Texas is simply less able or less willing to find innocents among its capital convictions, the implication is startling. If Texas has been wrongfully sentencing innocent people to death at the same rate as the rest of the country, then Texas should have exonerated at least 63 of them from death row. That's substantially more than the 12 condemned souls who have been exonerated from a Texas capital conviction.

That's 51 more.

Is it even remotely possible that Texas could have executed 51 innocent people?

Despite the relatively straightforward math, the calculated result is far beyond anything seriously suggested before. In fact, over the last couple years, most of the discussion about any wrongful execution in Texas has centered about a single case, that of Cameron Todd Willingham. Even that single, solitary case remains hotly debated despite (or perhaps because of) the enormous resources poured into investigating and debating it. Proving that several score more had been wrongfully executed would require a Herculean effort.

Yet if one were to review, in even cursory fashion, each of the 476 executions carried out by Texas, one might find disturbing trends. There have been people convicted on questionable eyewitness testimony or shaky forensics. There have been too many cases in which the State effectively purchased critical testimony from alleged accomplices or jailhouse informants. Too often an alternative suspect was ignored while the State was fixated on the soon-to-be condemned. In many cases the condemned man, while being strapped to the gurney, proclaimed his innocence to no avail rather than prayed for forgiveness in the hope of life everlasting.

As a beginning of such a review, one might want to at least consider the cases of:

Rick Perry's Stewardship
In its 1993 decision of Herrera v. Collins, the United States Supreme Court declined to accept the responsibility of culling the factually innocent from those condemned to death. Instead, the Court left that formidable responsibility to the executive branch of each state. I excerpt below from Justice Renquist's majority opinion.

Claims of actual innocence based on newly discovered evidence have never been held to state a ground for federal habeas relief absent an independent constitutional violation occurring in the underlying state criminal proceeding. ... This rule is grounded in the principle that federal habeas courts sit to ensure that individuals are not imprisoned in violation of the Constitution -- not to correct errors of fact. ... Few rulings would be more disruptive of our federal system than to provide for federal habeas review of free standing claims of actual innocence. ...

This is not to say, however, that petitioner is left without a forum to raise his actual innocence claim. For under Texas law, petitioner may file a request for executive clemency. ... Clemency is deeply rooted in our Anglo-American tradition of law, and is the historic remedy for preventing miscarriages of justice where judicial process has been exhausted. ... Today, all 36 States that authorize capital punishment have constitutional or statutory provisions for clemency.

Executive clemency has provided the "fail safe" in our criminal justice system. ... It is an unalterable fact that our judicial system, like the human beings who administer it, is fallible. But history is replete with examples of wrongfully convicted persons who have been pardoned in the wake of after-discovered evidence establishing their innocence. ... History shows that the traditional remedy for claims of innocence based on new evidence, discovered too late in the day to file a new trial motion, has been executive clemency.

There is no basis in text, tradition, or even in contemporary practice (if that were enough) for finding in the Constitution a right to demand judicial consideration of newly discovered evidence of innocence brought forward after conviction. In saying that such a right exists, the dissenters apply nothing but their personal opinions to invalidate the rules of more than two-thirds of the States, and a Federal Rule of Criminal Procedure for which this Court itself is responsible. If the system that has been in place for 200 years (and remains widely approved) "shock[s]" the dissenters' consciences, ... perhaps they should doubt the calibration of their consciences, or, better still, the usefulness of "conscience shocking" as a legal test.

I nonetheless join the entirety of the Court's opinion ... because I can understand, or at least am accustomed to, the reluctance of the present Court to admit publicly that Our Perfect Constitution lets stand any injustice, much less the execution of an innocent man who has received, though to no avail, all the process that our society has traditionally deemed adequate. With any luck, we shall avoid ever having to face this embarrassing question again, since it is improbable that evidence of innocence as convincing as today's opinion requires would fail to produce an executive pardon.

Under Rick Perry's executive stewardship, 239 people were executed through October of 2011. That's more than twice as many executions as from Harris County, ever. That's more than twice as many executions than from Virginia, all time. That's more executions than from Virginia and Oklahoma combined. Rick Perry has yet to detect an innocent person among the lot.

Five Texas death row inmates have been exonerated under Governor Perry's stewardship, but he pardoned none of the five. All were freed based on the efforts of others, frequently others working outside Texas' formal justice system.

The most recently exonerated was Anthony Graves. Graves had been convicted in 1994 for the murders of Bobbie Davis, her daughter, and her four grandchildren. The six victims died because Lisa Davis had recently served Robert Earl Carter with paternity papers. Lisa, however, was not at home when her mother was stabbed, her sister was shot, the four children were bludgeoned with a hammer, and the house was set ablaze to cover the crime.

Carter was arrested when he attended the funeral of his murdered son while wearing bandages to cover severe burns. At first Carter denied any involvement with the murders. He claimed his burns came from a grass fire in his own yard. After lengthy interrogation, he admitted to having been at the scene but claimed another person had committed the murders. That other person was Anthony Graves, a cousin of Carter's wife.

When Carter finally gave up Graves' name after 10 hours of interrogation, Carter was somehow operating under the mistaken belief that identifying an alternative culprit would save him, might even allow him to go directly home. From the transcript of his interrogation:

I hope you don’t use this to lock me up, to lose my job or anything like that or lose my family. As one of the Texas Rangers put it, that they roll out the red carpet for me. I know you’re trying to do me a favor. At the same time I’m trying to do you one. You want to catch the guy ... and I don’t want to lose my other family behind this.

There was no physical evidence to place Graves at the crime scene. In fact, the substantial evidence was that Anthony Graves was elsewhere. Graves was nonetheless convicted based on the testimony of Carter, some horrible forensic work, and on purported jailhouse statements purportedly overheard by law enforcement officials. Anthony Graves was found guilty and sentenced to death, as was Carter.

Even before Graves' trial, Carter had recanted all claims that Graves was involved. The State kept those recantations from the defense. After Graves' trial and conviction, Carter resumed his efforts to recant his statements and now his testimony. Two weeks before his own execution, Carter filed a sworn statement recanting all previous claims that Anthony Graves had played any role in the murders. It was nearly the last such statement in a long line of admissions that Carter lied about Graves' involvement. Carter's final admission came as part of the final statement allowed him while strapped to a gurney with a needle in his arm.

To the Davis family, I am sorry for all of the pain that I caused your family. It was me and me alone. Anthony Graves had nothing to do with it. I lied on him in court. ... Graves don't even know anything about it. ... I hope that you can find your peace and comfort in strength in Christ Jesus alone. Like I said, I am sorry for hurting your family. ... I am ready to go home and be with my Lord.

Despite Carter's multiple recantations, the State made no effort to reconsider the conviction of Anthony Graves. Though it had become clear that the State had withheld exculpatory information, Governor Perry stood mute as the Anthony Graves case made its way slowly to conclusion.

Anthony Graves' road to exoneration began with law and journalism students, peaked when the United States Fifth Circuit Court ordered Texas free him or grant him a new trail, and culminated when the newly assigned prosecutor found it impossible to make any case against Graves.

After months of investigation and talking to every witness who's ever been involved in this case, and people who've never been talked to before, after looking under every rock we could find, we found not one piece of credible evidence that links Anthony Graves to the commission of this capital murder. This is not a case where the evidence went south with time or witnesses passed away or we just couldn't make the case anymore. He is an innocent man.

Though Anthony Graves spent 16 years in prison for a crime he did not commit, though he was convicted based on what the State finally admitted was zero credible evidence, though he was freed based largely by the efforts of those outside of the Texas justice system, and though the State resisted his exoneration until the very end, Rick Perry nonetheless declared the case to be proof of a well-tuned execution system.

I think we have a justice system that is working, and he’s a good example of -- you continue to find errors that were made and clear them up. That’s the good news for us, is that we are a place that continues to allow that to occur. So I think our system works well. It goes through many layers of observation and appeal, et cetera. So I think our system is working.

Barry Scheck, co-director of the national Innocence Project, had a slightly different twist on the matter.

If the conclusion you reach is that a near miss like this means that the system is working, then you don’t understand the problems with the system. It’s sticking your head in the sand.

The Texas Board of Pardons and Paroles
The governor of Texas can grant a pardon only if the Texas Board of Pardons and Paroles first recommends clemency. That's true for all prisoners and probationers falling under the purview of the Texas Department of Criminal Justice. With respect to death penalty convictions in particular, the governor can, without approval of the board, issue one 30-day stay of execution. Other than that one stay, the governor cannot by himself prevent or delay an execution without a favorable recommendation from the Board of Pardons and Paroles.

One might argue, therefore, that this administrative arrangement somehow frees Rick Perry (and his predecessors) from any responsibility that might otherwise accrue from a wrongful execution, that Rick Perry cannot act effectively unless the Board acts first. One could argue that the Board of Pardons and Paroles, not Rick Perry, bears the final responsibility for insuring that no innocent person is executed.

There has not, however, been even one execution in which Rick Perry was actually constrained by the board. Not once did Rick Perry grant even a 30-day stay without the board's recommendation, though he is allowed to do so. Neither did Rick Perry take to the bully pulpit to denounce the unwillingness of the board to commute a sentence. Rick Perry never offered even the slightest hint that he felt one of the condemned might be innocent, that he was unable to act because the board members refused to do so first.

In fact, rather than the board constraining Rick Perry, Perry has substantially thwarted the board's efforts to grant clemency. From 2001 to 2009, the board recommended clemency (either pardon, commutation, or reprieve) in more than 500 cases for all sorts of crimes. Governor Perry granted clemency in only 30% of those cases. In 2010, Perry granted clemency in only 20% of the cases recommended by the board. Even those relatively few cases tended towards non-violent offenses committed many years earlier. Lewis Ray Howell, for example, was pardoned in 2010 for a theft he committed in 1955. Howell was 18 years old when he committed his crime. He was 73 years old, long released from prison, and living in Florida when Perry pardoned him. Perry faced little chance of political backlash for such a pardon.

Instead of hamstringing Governor Perry, as many would like to believe, the Texas Board of Pardons and Paroles instead provides him political cover. The board membership is pretty much guaranteed to do so, given that the governor appoints each member. Since Rick Perry was sworn into office, 30 people have served as members of the board. Each of them was appointed either by Governor George Bush or Governor Rick Perry. The last 19 to be appointed or re-appointed owe their jobs to Rick Perry. All seven members of the board, as it is now constituted, now owe their jobs to Rick Perry.

A Single Disagreement
In only one capital murder case has the Texas Board of Pardons and Paroles disagreed with Rick Perry's public position. In 2004, one day before Kelsey Patterson was to be executed, the board voted 5 to 1 to recommend that Patterson's death sentence be commuted to life in prison. They voted so presumably due to Patterson's rather obvious insanity. Waiting until just one hour before Patterson's scheduled execution, Rick Perry announced that he would not abide by the board's recommendation, that he would not commute the sentence.

State and federal courts have reviewed this case no fewer than ten times, examining his claims of mental illness and competency, as well as various other legal issues. In each instance the courts have determined there is no legal bar to his execution. ... In the interests of justice and public safety, I am denying the defendant's request for clemency and a stay.

In the only capital case of disagreement, Rick Perry was hardly hamstrung by the board.

In Ford v. Wainwright (1986), the U.S. Supreme Court formalized the common law standard that it would constitute cruel and unusual punishment to execute someone who was insane. Kelly Patterson should have easily qualified. In 1992, he walked from his home to an oil company a block away. He walked up behind a company employee, shot him in the head, and walked away. When another employee started screaming, he returned and shot her in the head. He then returned home, told his roommate what he had done, stripped down naked (except for his socks) and walked up and down the street until he was arrested.

The State's psychiatric expert of course declared Patterson sane, though the State had had twice previously found Patterson incompetent to stand trial for two earlier, non-fatal, unexplained shootings. In each of those earlier cases, Patterson had been sent to a state mental hospital rather than tried in criminal court. In each case, obviously, Patterson was released though not cured.

For the most recent shooting, Patterson was provided a pre-trial, mental competency hearing. During jury selection for that hearing, the judge asked Patterson to stand so that potential jurors might determine whether they knew him or had ever met him. As Patterson stood before his jurors, he told them:

I have an implant in me. I heard you in Dallas County in '86. Asked you how much you are going to invest. You said one percent.

Patterson was immediately removed from the courtroom.

When he took the witness stand during that hearing, he argued that his food had been poisoned, that his body had been implanted with remote control devices, and that his own attorneys were in on the plot to persecute him. From the transcript of that hearing, I offer the following segment.

Patterson: Purposely you have been part of it. Then you come in here and play crazy with me, just as straight faced as ever.

Attorney: What kinds of things have I done to you?

Patterson: You have talked on the speaker system. Even nasty in my food. I have put a spoon of mashed potatoes in my mouth and had to spit them out.

...

Patterson: They have some type of implant devices that they used on me in the military, which I receive. Like the device that they put in the inner ear in which they can send subliminal message and make a person act beyond their controllability to know you have taken an action.

Attorney: Kelsey, do you believe those implants are still in your body?

Patterson: I know for a fact. Y'all play with it all of the time.

Throughout his trial, Patterson's frequent outbursts caused him variously to be removed from the courtroom, have his hands cuffed, or have his mouth taped. The following exchange between Patterson and the judge occurred after Patterson had been again allowed into the courtroom following an earlier removal.

Patterson: I would like to stay if I could.

Judge: You may stay if you choose to be quiet.

Patterson: You know, Stafford, the one who had the implant device in '69.

Judge: Mr Patterson, you can stay as long as you're quiet.

Patterson: John McDonald -- I just received my --

Judge: Sir, did you understand what I said?

Patterson: Clerk's yesterday -- and I am misrepresented, but I have got to go through this.

Judge: Sheriff, take the defendant out of the courtroom. He insists on talking --

Patterson: I will stay if you will let me. You know, these men don't represent me. And has got Louis Oates' son working at the jailhouse -- and with the knife saying it ain't the time or place of death.

The jury took less than two hours reject the insanity defence and to find Kelsey Patterson guilty of capital murder. Even as the judge read the verdict, Patterson continued his ramblings.

Judge: Mr Patterson, please stand. I'll read the verdict of the jury: "We the jury find the defendant, Kelsey Patterson, guilty of capital murder as charged in the indictment." You may be seated, sir.

Patterson: Yeah, October 26th and on November 24th, 1992. Letter by gunpoint by James Todd 1983, November 21st.

Judge: Mr Patterson, you may be seated.

Patterson: [mumbling inaudibly in the background].

Judge: Sheriff, cause the defendant to be seated, please. Remove him from the courtroom.

Patterson believed that he had been convicted as part of a "hell pledge" in which his judges, prosecutors, and defense attorneys were all conspirators from hell. He nonetheless came to believe he had been granted amnesty on grounds of his actual innocence. He was therefore convinced he would never be executed. When he arrived at the death house, he continued to believe he would not be executed. Because of that belief, he refused to select witnesses for his execution, or to request a final meal.

Even as he was being strapped to the gurney, he continued to maintain that he had been acquitted.

Murderer. No kin, no kin, no kin. I'm not guilty of the charge of capital murder. Acquitted by the Court of Criminal Appeals.

When asked if he had any final statement to make, he responded:

Statement to what? State what? I'm not guilty of the charge of capital murder. Steal me and my family's money. My truth will always be my truth. There is no kin and no friend, no fear what you do to me. No kin to you, undertaker. Murderer. Go to hell. Get my money. Give me my rights. Give me my rights. Give me my life back.

Despite the Supreme Court's long-standing ruling that the insane should not be executed, and despite the Texas Board's nearly unanimous recommendation that Kelsey Patterson not be executed (presumably because they perceived him to be insane), Governor Rick Perry refused to commute Patterson's sentence. In fact, Rick Perry refused to grant even the 120-day stay recommended as an alternative by the board.

In the interests of justice and public safety, I am denying the defendant's request for clemency and a stay.

Six Cases of Absolute, Probable, or Possible Innocence
In this monograph, I will detail the cases of four people executed in Texas under the less than watchful eye of Rick Perry. I will detail also two capital murder convictions in which the inmate has come within a day of execution, cases in which Texas has not yet been able to administer the ultimate punishment.

Francis Elaine Newton
Francis Elaine Newton was the first black woman executed in the United States since the Civil War. She was convicted in Harris County, the county with more successful death penalty convictions than any other county (and any other state) in the union. Harris County is home to the Houston Police Department Crime Lab, identified in a New York Times article as possibly the worst in the nation. Newton was convicted primarily on the incredibly sloppy work of that lab.

Larry Swearingen

Larry Swearingen has survived three execution dates. Twice he has come within a day of meeting his maker while Rick Perry and his Board of Pardons and Paroles stood mute. Swearingen continues to win stays of execution by bringing forth distinguished scientists who insist that it is medically impossible for him to have murdered the victim. The scientists continue to pile on evidence that the victim died no more than a week before her body was discovered in the Sam Houston National Forest. Since Swearingen had by that time been in jail for three weeks, he cannot possibly be guilty of her murder. The State, nonetheless, hopes to execute Larry Swearingen as quickly as possible.

As icing on the cake, the State withheld evidence from the defense that the victim's life had been explicitly threatened by a stalker just days before she disappeared.

Cameron Todd Willingham
Cameron Todd Willingham was convicted of killing his three baby girls via arson. His conviction was based on the fatally flawed testimony of the State's pompous arson investigator. Just days before Willingham's execution, Governor Perry was provided an affidavit from our country's foremost fire investigator, Dr. Gerald Hurst. Dr. Hurst explained point by point why the arson evidence used to convict Willingham was based on little more than rules of thumb and old wives' tales. Though Rick Perry claimed to have read the affidavit, he did not attempt to stop or delay the execution in any fashion.

Rick Perry has since spent considerable effort to prevent the Texas Forensic Science Commission from investigating that case.

Kia Levoy Johnson
Kia Levoy Johnson was convicted of murder during the robbery of a convenience store, even though the FBI was unable to match his face or voice to the face and voice preserved on the store's surveillance camera. Johnson was convicted even though his fingerprints could not be found the counter, though the camera showed the shooter placing his prints right there. Instead Johnson was convicted based on the purchased testimony of three people who claimed they could identify Johnson from the video, even though the FBI could not.

Lamont Reese
Lamont Reese sat on a curb as his girlfriend drove three armed men to gun down rival gang members who had just insulted her. Reese refused to participate. To secure convictions in the case, the State brokered lives for favorable testimony. In a world where the first to talk walks, and the last to lie dies, Lamont Reese died not because he committed the crime, but because the others wanted to live.

Hank Skinner

The case of Hank Skinner is the most DNA rich capital murder case of which I am aware. Only a small fraction of the DNA material has been tested. Critical DNA evidence from a rape kit, from fingernail scrapings, and from a foreign windbreaker have never been tested. For sixteen years, Texas has been attempting to execute Skinner while simultaneously preventing the DNA from being tested. Once, they came within 47 minutes.

All the while, Rick Perry has stood mute.

The Debate
When asked during his first presidential primary debate if he had ever struggled with the possibility that any of the (then) 234 people who had been executed under his watch might have been innocent, Rick Perry replied:

No sir, I’ve never struggled with that at all. The state of Texas has a very thoughtful, a very clear process in place of which -- when someone commits the most heinous of crimes against our citizens, they get a fair hearing, they go through an appellate process, they go up to the Supreme Court of the United States, if that’s required.

But in the State of Texas, if you come into our state and you kill one of our children, you kill a police officer, you’re involved with another crime and you kill one of our citizens, you will face the ultimate justice in the State of Texas. And that is you will be executed.

After Rick Perry offered that reply, amidst applause, I decided to write this monograph. By detailing six capital murder convictions of people who are absolutely / probably / possibly innocent, I hope to address the issue of whether Governor Rick Perry should have struggled with at least some of his (now) 239 executions. I hope as well to make a case that Governor Rick Perry should indeed struggle with several pending executions as yet unresolved by the needle.

1 comment:

Anonymous
said...

Awesome writing. Yes our state and Governor are definitely behind the curve on this subject. I was surprised that the Board of Pardons and Paroles had ever acted though. Rick Perry will escape punishment for his inaction here on this earth but he will face a higher Judge when his earthly life is through. It is just a shame that there will be innocent people that have gone on before him. Rick Perry is simply unconcerned about the sanctity of life. Texas is an abomination. What is sad is that the people chosen for these juries don't even listen well to begin with to the evidence presented. Unfortunately I have witnessed this more than once.